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Salter: Apple v. FBI — What can government regulate?

Is the right to privacy absolute? What can the government regulate? Is encrypted digital data to be afforded the same protections as materials traditionally protected by the First Amendment?

Apple in seeking to protect data access in their iOS platform — and now by extension Google in making the same argument to protect its Android data access — is offering an argument over privacy, data access, proprietary technology and First Amendment issues that is at once compelling and at the same time confusing and convoluted.

In response to the horrific San Bernardino, California, terrorist attack that left 14 dead and 22 wounded at a holiday office party on Dec. 2, a federal judge ordered Apple Inc. to help the FBI hack into a locked iPhone used by terrorists Syed Rizwan Farook and his wife Tashfeen Malik prior to the atrocity. Farook and Malik were killed in a gun battle with police after the attack — which was believed in part to be inspired by the couple’s fealty to the Islamic State.

At face value, the FBI demand to Apple seems logical, moral and even patriotic. The FBI argues Apple has a duty to help them obtain encrypted data that will help determine the full extent of a terrorist act that killed and maimed innocent Americans on American soil.

That information, the government argues, could well prevent future attacks and save the lives and health of innocent fellow Americans. Apple argues that what the government really wants is to force the company to create a means to disable a proprietary feature on its iPhone that disables all content after 10 failed password submissions.

If Apple complies with the request in San Bernardino, the company argues, then the newly created code could be sought by governments all over the world through law enforcement agencies to put customer data at risk.

Here’s another fact: Farook didn’t even own the phone. The phone was owned by the San Bernardino County Department of Health. The California county government office consented to having its phone searched, but the passcode was unknown to county officials.

What makes Apple’s request suspect is the revelation that until 2014, Apple possessed an electronic “key” in the software that the company could use to comply with law enforcement requests for data. But that year, the company announced that, as of the then-new iOS 8, “Apple will not perform iOS data extractions in response to government search warrants.”

In that claim, it would seem Apple seeks to create a digital privacy through what some have called an “impregnable smartphone” that doesn’t exist for the homes, cars, storage units, safes, or filing cabinets of American citizens served with a duly issued search warrant signed by a judge with appropriate jurisdiction.

But in an open letter, Apple has said, “Specifically, the FBI wants us to make a new version of the iPhone operating system, circumventing several important security features, and install it on an iPhone recovered during the investigation. In the wrong hands, this software — which does not exist today—would have the potential to unlock any iPhone in someone’s physical possession.

“The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor. And while the government may argue its use would be limited to this case, there is no way to guarantee such control.”

The U.S. Department of Justice responded to that Apple claim in a court filing: “Apple may maintain custody of the software, destroy it after its purpose under the (court) order has been served, refuse to disseminate it outside of Apple, and make it clear to the world that it does not apply to other devices or users without lawful court orders. As such, compliance with the order presents no danger for any other phone, and is not ‘the equivalent of a master key, capable of opening hundreds of millions of locks’.”

Regardless, the question is intriguing: Can the data on our smartphones really be afforded protection from lawful search and seizure that isn’t currently extended to the individual who owns the phone, the house that individual occupies or the automobile he drives?

Confused? Perhaps we all are. George Orwell once observed that “people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.”

But Orwell also said, “Who controls the past controls the future. Who controls the present controls the past.”

Sid Salter is a contributing columnist. Contact him at sidsalter@sidsalter.com